4th Day of Jury Deliberations in Robel Phillipos Trial

The jury is in its fourth day of deliberations in the trial of Robel Phillipos, the friend of Dzhokhar Tsarnaev charged with two counts of making a false statement to federal officials in a terror investigation. Count One pertains to his statements to authorities on April 20, 2013, and Count 2 relates to statements made on April 25, 2013.

One of the reasons it may be taking so long: The jury must be unanimous as to any particular false statement he made. While there are only two counts, there are two allegedly false statements in the first count and seven in the second count. The jury has to discuss and arrive at a consensus on each. [More....]

From court documents # 498, 499 and 500, available on PACER:

For Count 1, April 20, 2013, the statements Robel allegedly made that the Government claims are false are the following:

(1) he did not remember going to Dzhokhar Tsarnaev's dormitory room on the evening of April 18, 2013; and
(2) he returned to the door of Dzhokhar Tsarnaev' s dorm room on the evening of April 18, 2013 at approximately 10:00 p.m. with Kadyrbayev and Tazhayakov (PHILLIPOS admitted that he had gone to Dzhokhar Tsarnaev's dormitory room earlier in the afternoon), but no one entered the dormitory room.

For Count 2, the April 25 statements:

(1) he only entered Dzhokhar Tsarnaev's dormitory room on one occasion on April 18, 2013, which was sometime in the afternoon when he spoke to Dzhokhar Tsarnaev for approximately ten minutes;
(2) he did not observe anyone take a backpack out of Dzhokhar Tsarnaev' s dormitory room on April 18, 2013;
(3) he did not see a backpack inside Dzhokhar Tsarnaev's dormitory room on the evening of April 18, 2013;
(4) he did not see any fireworks inside Dzhokhar Tsarnaev's dormitory room on the evening of April 18, 2013;
(5) neither he, Kadyrbayev, or Tazhayakov took a backpack from Dzhokhar Tsarnaev's dormitory room on the evening of April 18, 2013;
(6) he was not aware of Kadyrbayev or Tazhayakov removing anything from Dzhokhar Tsarnaev's dormitory room on the evening of April 18, 2013; and
(7) he did not engage in any conversation with Kadyrbayev and Tazhayakov regarding plans to discard in the trash a backpack, which had been taken from Dzhokhar Tsarnaev's room on the evening of April 18, 2013.

It's not enough for the statement to be false. The jury must also find Robel made the statement knowingly, and that at the time he made it, he knew it was false. The elements the Government must prove beyond a reasonable doubt are:

First, that the defendant made the statement alleged;
Second, that the statement alleged was false;
Third, that the defendant knowingly and willfully made the alleged false statement;
Fourth, that the alleged false statement knowingly and willfully made by the defendant was material; and
Fifth, that the defendant made the statement in connection with the Boston Marathon bombing investigation being conducted under the jurisdiction of the Federal Bureau of Investigation’s “Joint Terrorism Task Force,” an entity that falls within the executive branch of the United States government.

The jury was also instructed:

  • A statement is an assertion of fact made by a person.
  • A statement is false if it is untrue when made.
  • A false statement is made knowingly if the maker of the statement knows it to be untrue at the time that he makes it such that the person making the statement realized what he was doing and was aware of the nature of his conduct.
  • A statement is made willfully if it is made voluntarily and intentionally with a bad purpose and intent to disobey or disregard the law and not as the result of some inadvertence, mistake, misunderstanding, or accident.
  • A statement is material if it has a natural tendency to influence or to be capable of influencing the decision of the decisionmaker to which it is directed, regardless of whether the decisionmaker actually relied upon it....The activity of the decisionmaker alleged is the investigation of the FBI’s “Joint Terrorism Task Force” into the Boston Marathon bombing; consequently you will evaluate the element of materiality in connection with that investigation.
  • The government need not prove that the defendant was aware of the specific provision of the law that he is charged with violating or any other specific provision, but he must be proven to be aware his conduct was wrongful.

After it gets through the 9 statements, if the jury voted to convict on any statement, it must decide, for each such statement, whether the statement was made in connection with a terrorism investigation. It is not necessary that the false statement affected or obstructed the investigation. (The defense had argued otherwise, but the judge ruled against it on this point.)

A false statement conviction usually carries a five year sentence, but if the false statement was made in a matter that involves international or domestic terrorism, the maximum sentence is increased to eight years. The guidelines are very harsh on false statements in a terror investigation. According to a defense pleading:

If the §3A1.4 sentencing guideline is applied to Mr. Phillipos, the resulting sentencing guideline would be 210– 262 months, well in excess of the five or eight year maximum sentence under §1001. ...The applicable guideline range for a violation of §1001 without the statutory terrorism enhancement is 0-6 months. Thus, the issue of whether the terrorism enhancement in §3A1.4 applies should be submitted to the jury.

The defense objected to the listing of all 9 statements when there were only two counts, but the court ruled against them. (At the time it made its submission, there were 10 alleged false statements -- 3 in count 1 and 7 in count 2. One of the statements in Count 1 was later dropped.) The defense wrote:

Further, the suggestion that each potential misstatement be listed out as a possible means of convicting Mr. Phillipos impermissibly expands the indictment from two counts of violating § 1001 to ten counts. If the government wished to receive the benefit of such a deliberation it should have asked the grand jury to return ten indictments instead of two. It should not now be allowed to receive the benefit of essentially ten separate charges when it originally chose to group the misstatements into two distinct counts.

It's not possible to tell whether the jury is still reviewing each of these statements, or there is discord.

There was some dissension on the April 20 statements, as the jury sent a note asking for the transcript of the trial testimony of Essex Deputy Sheriff Earle who testified about a text message sent by Dias Kadyrbayev to Robel Phillipos around 10 pm on April 18 that read, "Come to Jahar's!!"

The judge told them to rely on their memory.

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  • Display: Sort:
    It has been my experience that a jury (none / 0) (#1)
    by Peter G on Fri Oct 24, 2014 at 04:44:14 PM EST
    that deliberates for days over a fairly cut and dried question -- did he intentionally lie or didn't he -- even as to seven different statements -- would try to compromise when it gets to be Friday afternoon, and they realize they are looking at coming back next week to continue.  Yet in this case, the jury did not reach a verdict (compromise or otherwise) on Friday. This suggests to me that the jury is probably experiencing a sharp division of opinion about guilt, and that the minority (which could be pressing for guilt or for acquittal, who knows) seems to be holding their ground. Could end up in a mistrial due to a hung jury. If so, I hope they don't bother to retry this kid.  It is not a crime -- just bad luck -- to have been a friend of someone who turned out to be a violent nut.

    Hopefully some of them have/had or will have (none / 0) (#4)
    by ZtoA on Sat Oct 25, 2014 at 12:25:34 AM EST
    19/20 year old kids in college and know that 'comrade-ity' kids and --people in general-- can have helpful attitudes towards their peers (even if they don't remember how they probably were at that time in their lives). Juries are, after all, just lay people who live the society of the day. Hoping they return a reasonable verdict!

    Searching For Government's Motivation (none / 0) (#2)
    by RickyJim on Fri Oct 24, 2014 at 05:44:12 PM EST
    Well they certainly didn't bring the case because Phillipos delayed them from catching Tsarnaev by a single second, or prevented them from collecting evidence they need to prosecute the latter.  Do they feel that they have to increase the population of potheads in jail?  Or frustrated by all those who lie to the government on their income taxes, they think they want to show how tough they are in going after fibbers?

    Yeah, well that's the rub (5.00 / 1) (#3)
    by NYShooter on Fri Oct 24, 2014 at 06:31:36 PM EST
    Are you being tried based on the narrow, strict interpretation of the law and indictment, or, are you that unlucky shmuck that's being used politically to "send a message" to that great someone "out there?"